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Joint Commnr., H.R. & C.E. Administration Department Vs. Jayaraman & Ors [2005] Insc 600 (26 October 2005)

S.N. Variava, P.K. Balasubramanyan & P.P. Naolekar P.K. Balasubramanyan, J.

1. An extent of 10.38 acres of land, which was government land and situated around four temples, namely, Keelakottai Sri.

Vinayagar Temple, Muthampatti Sri Vinayagar Temple, Mottakottai Sri Vinayagar Temple and Mariamman and Bhagavathiamman Temples were set apart by the British Government for the purpose of the use of its income for the poojas and maintenance of the temples. The land was put in the possession of one Veerana Pandaram, who was the poojari.

Respondent Nos. 1 to 7 herein, the descendents of Veerana Pandaram filed a petition before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madurai, under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter called the 'H.R & C.E. Act') praying that they may be declared as hereditary trustees cum poojaries of the Mariamman and Bhagavathiamman Temples. This application was made, when after an enquiry, a preliminary report was made by the Special Inspector, to the Assistant Commissioner of H.R & C.E. Administration Department, Madurai, to the effect that the lands endowed and belonging to the temples, are being enjoyed by the three poojaries, who render pooja services. The poojaries were taking the income, but were not maintaining any accounts. As various development works had to be done in the temple, the lands may be assessed to contribution from the concerned fasli. The Special Inspector also suggested that show cause notices be issued to the poojaries regarding the appointment of trustees for the temple. In their application, the successors of Veerana Pandaram prayed in terms of Section 63(b) of the H.R & C.E. Act, that they and the three respondents to the said application, may be declared as hereditary trustees of both the temples, the office as hereditary and them as the trustees of Mariamman and Bhagavathiamman Temples. By order dated 4.10.1972, the Deputy Commissioner, H.R & C.E. Department, declared that the applicants before him are holding the office of trusteeship cum poojariship of Mariamman and Bhagavathiamman Temples at Keelakottai village, Dindigul Taluk, Madurai district hereditarily. No declaration was given regarding the rights of the applicants, since no court fee was paid for the grant of such a relief. Thus, the successors of Veerana Pandaram were recognized as trustees of the temples.

Subsequently, the Settlement Tahsildar, Madurai passed an order on 31.03.1968 for issue of ryotwari pattas for lands covered by four title deeds referred to in that order, in favour of the four institutions represented by respondent Nos. 1 to 7. The respondents appear to have belatedly challenged the said order before the Appellate Tribunal.

Neither the deity nor the H.R & C.E. Department was impleaded in the appeal which was filed four years after the order of the Settlement Tahsildar. That appeal is seen to have been allowed and the matter remitted for a fresh consideration by the Settlement Tahsildar. It was noticed in the order of remand that the H.R & C.E. Department was not impleaded, and that it was necessary to implead the Department for an effective adjudication. In spite of it, it is seen that the respondents did not bring on record the H.R & C.E. Department or the deity in the array of parties, before the Settlement Tahsildar. The order does not also show that notice was issued either to the deity or to the Department.

That no notice was issued is seen admitted by the respondents before the High Court of Madras in a revision filed by them against the order refusing to grant a stay pending a revision filed by them against the proposal to appoint a fit person under the H.R & C.E. Act in their place.

The said order of the High Court dated 7.6.2002 is annexed as Annexure P-11 and in paragraph 4 thereof, it is recorded by the learned Judge that :

"The petitioners (the contesting respondents herein) would further submit that in none of the above referred proceedings, the H.R & C.E. Authorities were the parties and that being so, on coming to know that the petitioners have deposited a sum of Rs. 4,50,000/- in the name of the four institutions, the second respondent (Joint Commissioner, H.R & C.E.) has initiated the proceedings in NK. No.3369 of 2002/A1, dated 12.4.2002 against the petitioners on the ground that the sanction as prescribed under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act had not been obtained and by order dated 12.4.2002, the second respondent has suspended the petitioners and also directed them to hand over the charges to the third respondent." Thus, the mandate in the order of remand was not complied with either by the descendents of Veerana Pandaram or by the Settlement Tahsildar.

2. Thereafter, it is seen that the Settlement Tahsildar proceeded to uphold the claim of the successors of Veerana Pandaram.

But the Settlement Tahsildar noticed that the claimants did not produce either the original grants or the extract of the Inam Fair Register, in spite of the reference to the four title deeds Nos.1049, 1050, 1051 and 1052 said to be in favour of the four institutions represented through the claimants. He proceeded to hold that the claimants before him were eligible to get ryotwari patta subject to the condition of rendering service to the four institutions. Patta was thus granted subject to the conditions laid down in Section 21(2) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963.

3. What requires to be emphasized once again, is that the Settlement Tahsildar did not see either the original grants in respect of the lands or the extract of the Inam Register, while directing the issue of the patta by changing the pattadar from the temples to the claimants and did not care to insist on the claimants impleading the deities and the H.R & C.E. Department as respondents in the proceedings, in spite of the directions in that behalf contained in the order of remand. It was clearly a case of total non-application of mind by the Settlement Tahsildar amounting to dereliction of duty. The patta thus granted by him cannot either affect the rights of the deities or of the temples and cannot bind them or the H.R & C.E. Department. Nor can it affect the right of the worshipping public in these public temples.

4. The claimants, thereafter, purported to make an application in the court of the District Judge of Dindigul as O.P. No. 44 of 2001 under Section 34 of the Indian Trusts Act. Again, none was shown as the respondent to that petition. Against respondents, it was said "nil".

The District Judge apparently did not even apply his mind to direct the claimants, the petitioners before him, to implead the deity or the H.R & C.E. Department especially in the context of the nature of the claim made by the petitioners before him. One could even say that the District Judge apparently did not even read the petition filed before him since in the petition the claimants had clearly stated even at the threshold:- "The undermentioned properties were originally the Government Promboke lands and around the said properties there are 4 familiar and powerful temples namely Keelakottai Sri. Vinayagar Temple, Muthampatti Sri Vinayagar Temple, Mottakottai Sri Vinayagar Temple and one Mariamman and Bhagavathiamman Temples . Since those temples were not cared and looked after by anybody, to maintain the said temples and to do poojas etc., the British Government had rested the said properties in favour of one Veerana Pandaram, and directed him to perform poojas, keep the temple and its boundaries clean and for other incidental purposes out of the income from the undermentioned properties and thus he was appointed as a trustee and poojari of the said temples. In pursuance of that, the said Veerana Pandaram had been in possession and enjoyment of the undermentioned properties and he was doing pooja, Neivethiyam etc., and keeping the temple clean and he was also conducting yearly and periodical function of the temple, out of the income from the undermentioned properties." (emphasis supplied) He also did not care to notice the further statement that the petitioners had been in possession and enjoyment of the properties and management of the temple as trustees and hereditary poojaries. They had also referred to the original patta being granted in the name of the deities and to the relevant finding in that order. He also failed to notice the clear plea that the petitioners before him were in possession of the properties as trustees and the further plea that the petitioners are not given any right of alienation of the properties. A cursory application of mind would have induced the District Judge to direct the impleading of the deity and the H.R & C.E. Department and would also have made him ask himself whether the application under Section 34 of the Indian Trusts Act was maintainable at all before him and whether it was in the interests of the temple to permit the sale of the properties and whether the price for which it was proposed to be sold, was the prevalent market price or the price that alone could have been fetched by a sale. Consistent with this total lack of application of mind, the District Judge proceeded to allow the application filed under Section 34 of the Act, not realizing even at that stage, the need to hear the deity or the H.R & C.E. Department. By order dated 10.9.2001, the District Judge allowed the application as prayed for and permitted the sale of the properties and directed that the proceeds amounting to Rs. 4,50,000/- be deposited in the State Bank of India, Dindigul branch in Fixed Deposit. The claimants promptly sold the properties under cover of that order.

5. The Joint Commissioner of H.R & C.E. Administration Department, Madurai, on coming to know of the order thus passed by the District Court and the alienation effected, filed a petition under Article 227 of the Constitution of India in the High Court of Madras on behalf of the Department after obtaining permission to challenge an order to which he was not eo-nominee a party. The Joint Commissioner questioned the jurisdiction of the District Court to entertain the petition under Section 34 of the Indian Trusts Act pointing out that it was a public trust or a charity, certainly a religious trust, and Section 34 had no application. He also contended that the alienation was clearly in violation of the relevant provisions of the H.R & C.E. Act and the order passed by the District Judge without notice to the H.R & C.E.

Department was void in law and the District Judge was incompetent to grant the permission in view of the fact that the provisions of the H.R & C.E. Act were attracted and the transaction would be hit by Section 34 of the H.R & C.E. Act. The High Court, rather surprisingly, without properly applying its mind to the facts, the conduct of the claimants and the non-binding nature of the orders passed by the Settlement Tahsildar or the District Judge, without notice to the H.R & C.E. Department and to the deities, has upheld the order of the District Court. By a reasoning that skirts the issue, the High Court confirmed the order of the District Court and dismissed the revision filed by the Joint Commissioner. It is this order of the High Court that is challenged in this appeal by special leave.

6. At the outset, it must be stated that in the absence of the original grants being produced by the claimants, the grants could not have been construed by the District Court or by the High Court to decide upon the nature of the grant. That apart, it was clearly a case where orders have been obtained by the claimants without impleading the deity or the H.R & C.E. Department and the orders so obtained and the patta thus procured, were not binding either on the deities or on the H.R & C.E. Department. Therefore, neither the District Judge nor the Judge of the High Court could have relied on those proceedings as against the deities or as against the H.R & C.E. Department.

7. It is seen that the claimants had got themselves appointed as hereditary trustees by applying under Section 63(b) of the H.R & C.E.

Act. They could not thereafter shed their character as trustees of the temples holding the lands belonging to the temples at a subsequent stage at least without impleading the H.R & C.E. Department and the deities and without getting a valid adjudication of their right over the properties.

It is clear that in spite of the necessity for impleading the H.R & C.E.

Department being pointed out, the claimants made no attempt to implead the H.R & C.E. Department either before the Settlement Tahsildar or before the District Judge and consequently, the orders passed by the Settlement Tahsildar and by the District Court were clearly illegal and not binding on the deities or the H.R & C.E. Department. The claimants had, in fact, acted totally without bona fides in an attempt to corner the properties for themselves or at least to make undue gains for themselves by selling the properties. Such action would certainly not bind the deities or the H.R & C.E. Department. The High Court, representing the sovereign as parens patriae ought to have come down on the respondents herein and ought to have issued directions for the protection of the properties.

8. The grant was of government land. The grant was, even going by the case of the claimants, in favour of persons who were acting as poojaries of the temple, for the purpose of utilizing its income for poojas and maintenance of the temple. Even in the extract of the fasil register, it is shown that the registered name of the inamdar is poojaries of Mariamman and Bhagavathiamman Temples and the enjoyers as Veerana Pandaram and Arunachalam Chetty. The relation between the inamdar and the enjoyer is shown as 'Devadayam' and in the column regarding details of inam, it is shown as for poojas to God (Sasvatham) and in the column relating to details of endowment, it is shown that the income of the land is used by the poojaries for pooja and maintenance of the temples. Prima facie, Government land had been dedicated to the temples by way of grants by the Government. Even if, the income therefrom had alone been dedicated to the temples, it would still be a religious trust or endowment and certainly not a private trust to which the Indian Trusts Act would apply. Section 1 of the Indian Trusts Act itself provides that nothing contained therein applies to public or private religious or charitable endowments. The endowment here was certainly not a private endowment since there is no case that the temples are private. The endowment was for a religious purpose, the conduct of poojas in the temples and the maintenance of the temples. Therefore, endowment was of public property for the benefit of public temples and the poojaries were constituted the trustees. They were trustees imposed with the obligation of spending the income from the properties, for the poojas and maintenance of the temple. It was clearly a case of a public religious endowment and by virtue of Section 1 of the Act, the Indian Trusts Act would have no application. Learned counsel for the respondents tried to argue that the application under Section 34 of the Indian Trusts Act was maintainable but could not argue that these were private trusts by reference to any relevant material. The lands were government lands and the Government had dedicated the properties or the income therefrom for the up-keep of public temples. By no stretch of imagination, it can be held that it was a private trust coming within the purview of the Indian Trusts Act. The District Judge has, therefore, clearly acted without jurisdiction in entertaining the application under Section 34 of the Indian Trusts Act. On this short ground, it has to be held that the order passed by the District Judge in the application filed under Section 34 of the Act granting permission to the claimants to sell the properties is one without jurisdiction. The High Court was completely in error in brushing aside this vital aspect while considering whether the District Judge had acted within jurisdiction in entertaining the application under Section 34 of the Indian Trusts Act.

9. H.R & C.E. Act applies to all Hindu Public Religious Institutions and endowments. This is clear from Section 1(3) of that Act.

A religious endowment or endowment is defined in Section 6(17) of the Act. It reads:- "6(17) "religious endowment" or "endowment" means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, service holder or other employee of a religious institution;

Explanation (1) Any inam granted to an archaka, service holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, service holder or employee but shall be deemed to be a religious endowment.

Explanation (2) All property which belonged to, or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a "religious endowment" or "endowment" within the meaning of this definition, notwithstanding that, before or after the date of the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed;

Provided that this Explanation shall not be deemed to apply in respect of any property which vested in any person before the 30th September 1951, by the operation of the law of limitation." Section 6(18) defines a "religious institution" as meaning a math, temple or specific endowment. Going by the definition it is clear that the endowment in question is governed by the H.R & C.E. Act. Even if one were to accept the case of the claimants that it was an Inam granted to an archaka, the same would come within the definition of "religious endowment" or "endowment" under the Act in view of Explanation (1) thereto. Thus, it is clear that the endowment, gift or donation was governed by the H.R & C.E. Act. It is in this context that we have to appreciate the effect of the conduct of the claimants in getting themselves appointed as trustees by moving under Section 63(b) of the Act. Any alienation would, prima facie, be hit by Section 34 of the Act and even if the case of the claimants were to be taken at face value, the transaction would be hit by Section 41 of the Act. In either case, the permission contemplated by the respective sections was a must and the District Court lacked jurisdiction to give the permission for sale on an application under Section 34 of the Indian Trusts Act, that too, without issuing notice to and hearing the authorities under the H.R & C.E. Act.

10. The claimants had themselves applied under Section 63(b) of the H.R & C.E. Act and had got themselves appointed as trustees.

They had themselves held out and accepted that H.R & C.E. Act applies to the trust concerned. There is no case that the temples are not public temples and are not under the control of the H.R & C.E. Department in terms of H.R & C.E. Act. At best, the contention is only that the lands were conveyed in trust not to the temples or to the deities, but to the poojaries of the temples but with an obligation to utilize the income from the properties for the poojas and the up-keep of the temples. This certainly brought in the H.R & C.E. Act and the control of the authorities thereunder, even in respect of the administration of the trust by the claimants. The claimants were really estopped from raising a contention that the H.R & C.E. Act had no application or that they did not need the permission of the Commissioner under the Act for alienation either under Section 34 or under Section 41 of the H.R & C.E. Act. The claimants were disentitled to by-pass the provisions of the H.R & C.E.

Act and to secure an order from the District Judge without notice to the H.R & C.E. Department by moving an application under Section 34 of the Indian Trusts Act. The order thus obtained cannot bind the trust or the properties, or the deities or the H.R & C.E. Department. Similarly, no reliance can be placed on the so-called patta obtained by the claimants from the Settlement Tahsildar without notice to the H.R & C.E. Department.

11. It was contended that the purchase price had been deposited in a Fixed Deposit and so long as there is no failure on the part of the claimants to perform the services which they are liable to perform, there is no necessity to interfere with the transaction of sale affected by them.

It is seen that going by the prevalent valuation and the market value as reported, the lands were sold for a meager price or that the sale deeds indicated only a meager price as consideration for the same with all that it implies. Such a transaction is clearly seen to be not in good faith.

That the District Court proceeded to accept the value for which the property was being sold even without making an enquiry into the market value that the properties would have fetched at the relevant time while giving the permission for the sale, is shocking. The jurisdiction under Section 34 is advisory. The Court should have satisfied itself of the need for sale and the propriety of the sale proposed. The mere pleas that it was difficult to protect the property and that there was only meager income therefrom were by themselves not grounds to direct or permit the sale.

12. It is seen that there has been a clear attempt by the claimants to over-reach the deities and the authorities under the H.R & C.E. Act, while managing the properties dedicated for the purposes of the temple, properties granted and managed by them in their capacities as poojaries, for the maintenance of the temples. The attempt has to be deprecated.

13. In the circumstances, we allow this appeal and setting aside the order of the High Court in Civil Revision Petition (NPD) No. 1684 of 2002 and that of the Principal District Judge, Dindigul in Trust Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44 of 2001 filed by the claimants. Consequently, the permission granted for the sale would also stand set aside and the sale effected by the claimants pursuant to such permission will be deemed void and would confer no right on the purchasers thereunder or on any one claiming under or through them. It is also clarified that the revised order of the Settlement Tahsildar under Act 30 of 1963 and the revised patta granted are not binding on the deities or on the H.R & C.E. Department. The appellant would be entitled to its costs both here and in the High Court.

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